As the orphan works bill wends it way through the U.S. Congress, it is easy to appreciate what a nightmare it is for book publishers to try to clear rights to certain older images. Last week, Stock Connection became involved in a situation that illustrates the point.
In the 1980s, Everett Johnson, a photographer living in Northern Virginia, produced an image of new corn sprouting through cracked earth during a drought. The picture was first distributed by Frozen Images, which was later acquired by Zephyr. After acquiring the image, Zephyr sent Johnson a new contract, which he refused to sign. However, for reasons that are unclear, the image remained in the Zephyr files and was not returned to Johnson.
Zephyr marketed some of the images it represented through Uniphoto, a Washington, D.C.-based agency. At some point, the image was licensed to National Geographic for textbook use. Given the way sales were reported by Uniphoto, Johnson was unaware that National Geographic had ever used the image. Johnson's work was also represented directly by Uniphoto, but it appears this particular image was a frame that had been delivered to Frozen Images and later Zephyr, not Uniphoto.
To add to the complication, Johnson used the pseudonym "Peter Beck" when offering his images to some agencies. Thus, the image was credited to Peter Beck, a non-person.
Zephyr was later acquired by ImageState, and Uniphoto was acquired by Pictor. In 2002, Uniphoto/Pictor fell on hard times and filed for bankruptcy. ImageState obtained rights to represent the digitized images in Uniphoto/Pictor's online database. Johnson's image was never digitized and was not part of the online collection.
At this point, Johnson and a number of other photographers decided that they did not want to be represented by ImageState and requested return of their film. ImageState was not prepared to sort through approximately 400,000, and Stock Connection, a Maryland based agency, stepped into the picture. SC agreed to sort and return the film and also obtained signed agreements from several photographers allowing it to handle future reuse licensing of the Uniphoto/Pictor images. SC also arranged to have calls to Uniphoto/Pictor's New York office forwarded to its office.
In May 2006, ImageState went into bankruptcy, and Getty Images acquired rights to the wholly owned John Foxx RF images in its collection. (Johnson's image was RM.) Rights to the rest of the digitized ImageState images went to Heritage Partners in the UK, and are now being marketed under the ImageState brand.
In 2008, McGraw Hill obtained rights from National Geographic to use much of the content of the textbook published years before to create a Grade 6 Science text for distribution in Tennessee in 2010. The researcher on this project contacted Stock Connection through the call forwarding and requested permission to use Peter Beck's image. SC's current staffers were unfamiliar with the name, but managed to track down former Uniphoto employees, who knew that Peter Beck was really Everett Johnson.
Fortunately, McGraw Hill was prepared to use the separations from the previous book because SC did not have the image in its files; it did have a signed contract to represent Johnson.
During the negotiations, the publisher decided it wanted to pay Getty Images because it was their understanding that Getty Images had acquired ImageState. They had a bulk deal with Getty that was more favorable than the price Stock Connection was quoting and they had no knowledge or understanding of what Getty had actually purchased. At one point, Johnson did have a contract with Getty, but he had terminated that agreement years earlier. When the researcher discovered ImageState was still functioning under new management, he wanted to negotiate with them - until it was discovered it had no current contract for Everett Johnson.
As can be seen, industry acquisitions and lack of executing contracts have created a nightmare situation for buyers wishing to properly license rights to older images.
This transaction was relatively easy once Peter Beck was identified, but hardly cost-effective. In similar situations, the image in question was often produced by someone who has died and no one in the industry knows the heirs. The absence of a universal database where photographers could leave current contact information is a major problem in properly compensating creators. Despite these problems, the creator or his designee has a right to compensation when an image is used.